Fix FISA Fast

US intelligence agencies are missing out on what may be enormous amounts of crucial intelligence on foreign-based terrorists apparently due to a classified ruling of the Foreign Intelligence Surveillance Act court in about April 2007.

In a telephone conference call Wednesday morning, Senate Intelligence Committee ranking Republican Sen. Kit Bond (R-Mo) declined to say if such a ruling had come down or — if one had — what it said. But Bond did say that some significant action — which we believe most likely is a ruling by that court — placed a new and severe limitation on US intelligence agencies’ gathering of electronic intelligence. The new burden — whatever its source — was severe enough to propel Adm. Mike McConnell, the Director of National Intelligence, to come to the Senate on April 27 and ask that FISA be amended quickly to remove it.

Bond also said that the necessary legislation had been prepared soon after McConnell’s request, and could have been passed out of committee as early as last May. Democrats have objected, and still are creating obstacles that could prevent the amendments from enactment before Congress goes on its August recess Saturday.

The hang-ups include a proposal drafted by Democratic committee staffers that would require a FISA warrant for authority to intercept and record more than a certain number of telephone calls or e-mails from a foreign terrorist. That would extend the FISA requirements into what has — up to this point — always been regarded as the President’s constitutional authority to gather foreign intelligence, even by the original drafters of FISA. Republicans are likely to have that excluded.

It is impossible to analyze the FISA problem or the proposed solutions without resort to what we believe is a classified ruling of the court (which we do not have). But well within our reach are two things.

First, whatever burden on intelligence gathering that was created in April is now actually limiting intelligence collection. In effect, the National Security Agency and other US gatherers of electronic intelligence have been precluded – in whole or in part –from listening in on about 90 days of terrorist communications to persons within the United States. No wonder Homeland Security Secretary Mike Chertoff had a “gut feeling” about summer dangers. If the FISA court created an obstacle to gathering essential intelligence, Chertoff’s acid reflux may be all we have.

Second, to allow the obstacle to remain is a fundamental violation of the sovereign’s duty to protect the citizenry. All three branches of government are involved, and two — Congress and the Executive — have absolutely no excuse for failing to act.

The Democrats are, typically, more concerned about the “rights” of foreign terrorists and the danger of innocent Americans being listened to than the danger of missing intelligence the interception of which might prevent another 9-11.

There are, in FISA and in the proposed legislation, controls that would prevent innocent communications — if recorded mistakenly — to be expunged from government records. The proposed legislation apparently creates more of a role for the Attorney General (which Sen. Bond said was intended as another check and balance on the intelligence gathering) and which now, because of Dems’ disdain for Alberto Gonzales, is another stumbling block.

Several members of the press on the call with Bond tried to blame the administration for injecting Gonzales into the matter. Bond’s answer was that the person occupying the office of AG is irrelevant. That didn’t seem to satisfy the pressies.

What if Congress fails to act? What if it just kicks the FISA problem down the road until September? The choice will then be for the President to assert his constitutional authority to gather foreign intelligence (which FISA, even in its original form wasn’t intended to limit) or — we guess — to break the law as determined by the FISA court.

The Democrats would probably rather create a situation where George Bush could be accused of “high crimes and misdemeanors” than fix whatever ails FISA. Ten or twenty years ago, reaching that conclusion would have required appending the adverb “amazingly” to the conclusion about the Dems’ preference. That our politics has descended to the point where that adverb is not only unnecessary, it would be factually incorrect.

But even these Dems aren’t likely to go out for a month’s recess without passing some FISA fix, though what may be done will likely be incomplete. The Dems aren’t so far gone that they’d risk that a terrorist attack would happen in August (after they had failed to fix what’s broken and would have to take responsibility.)

The Democrats Prime Directive — never do anything related to the war that could give you responsibility for the effects — will overrule their momentary political instinct. Something will get done, but just enough to give cover for those who don’t want to do all that needs to be done.

Our intelligence community remains mired in bureaucracy. Congressional oversight isn’t too little, but too much. Dozens of committees and subcommittees — as the 9-11 Commission found — govern pieces and parts of the intelligence functions. This is one major 9-11 Commission recommendation Congress has willfully ignored.

When Congress returns in September, a fix to whatever problems with FISA won’t be enough. Congress needs to fix itself first. Streamline congressional authorities and then you can really fix what’s broken in our intelligence agencies. Roll back the post 9-11 “reforms” and get about fixing what’s really broken


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